Citation NR: 9607667
Decision Date: 03/21/96 Archive Date: 04/02/96
DOCKET NO. 94-21 576 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUE
Entitlement to service connection for a back disorder.
ATTORNEY FOR THE BOARD
Robert W. Legg, Associate Counsel
INTRODUCTION
This matter comes before the Board of Veterans’ Appeals (BVA
or Board) on an appeal from a rating decision of the
Department of Veterans Affairs (VA) Regional Office in
Wichita, Kansas, which denied service connection for a back
disorder. The veteran, who had active service from August
1972 through August 1993, appealed that decision, and the
case was referred to the Board for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran basically contends that the RO incorrectly denied
service connection for a back disorder. In essence the
veteran states that a back injury incurred during his time in
service resulted in his current back pain. Accordingly
service connection is in order for his back disorder.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence supports the claim for service connection for a back
disorder.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran’s appeal has been obtained by the
RO.
2. The veteran’s service medical records, including the
separation examination, contain reference to complaints of
back pain and diagnoses of a hypermobile lumbar spine.
3. The veteran manifests back pain which a VA examination,
conducted within one year of separation from service, has
diagnosed as hypertrophic spondylosis of the thoracic and
dorsal spine.
CONCLUSION OF LAW
A chronic back disorder, specifically hypertrophic
spondylosis of the thoracic and dorsal spine, may be presumed
to have been incurred during active service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113, 1131, 5107 (West 1991 & Supp.
1995); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the veteran’s
claim is well grounded within the meaning of 38 U.S.C.A.
§ 5107 (West 1991). See Murphy v. Derwinski, 1 Vet.App. 78,
81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990).
That is, the Board finds that the veteran has presented a
claim which is not implausible when his contentions and the
evidence of record are viewed in the light most favorable to
that claim. The Board is also satisfied that all relevant
facts have been properly and sufficiently developed.
The veteran’s service medical records, as well as records
dated following service show ample documentation of the
veteran’s back pain. It appears that the veteran has
suffered with intermittent discomfort for several years, and
in fact the record shows that the veteran was treated in
service for back pain resulting from a fall and on another
occasion for pain resulting from a racquetball game. In
addition, the veteran self-reported back pain on his
separation examination.
The veteran also reported back pain at a VA examination
conducted in May 1994. Results of that examination diagnosed
the veteran with hypertrophic spondylosis of the thoracic and
dorsal spine, a form of osteoarthritis. However, there was
no showing that the veteran was suffering from a hypermobile
lumbar spine or any other thoracic back disorder.
The Board notes that the VA examination was conducted within
one year of the veteran’s separation from service, and that
the veteran was in sum and substance diagnosed with a form of
arthritis. The Board further notes that arthritis is a
presumptive chronic disease as defined in 38 U.S.C.A.
§ 1101(3) (West 1991 & 1995). As such it is a presumed
service connected as it was diagnosed within one year of
service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1995).
Accordingly service connection for a back disorder,
specifically hypertrophic spondylosis of the thoracic and
dorsal spine, is warranted.
ORDER
Service connection for a back disorder, specifically
hypertrophic spondylosis of the thoracic and dorsal spine, is
granted subject to the laws and regulations governing the
payment of monetary benefits.
CONSTANCE B. TOBIAS
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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